In its decisions with regard to pre-removal detention under Directive 2008/115/ec, the position the cjeu has adopted seems vague and elusive, offering leeway for national interpretations of the text. The Court makes recurrent references to the Charter of Fundamental Rights of the eu (cfreu), but fails to give clear and uniform answers, leaving many aspects of pre-removal detention to evaluation by the referring national judges and, hence, to the discretion of Member States. What are the reasons that can be advanced and the conditions that need to be fulfilled in order to guarantee conformity with the ec norm of the national recourse to pre-removal detention? What are the intensity and the consequences of the judicial review of pre-removal detention by national jurisdictions? The Luxembourg Court has dealt with all these questions, casting some shadowed light on immigration detention under Directive 2008/115/ec.
M. Fordham J. Stefanelli and S. Palmer (2013) Immigration Detention and the Rule of Law. Safeguarding principles London: Bingham Institute for the Rule of Law.
M.-L. Basilien-Gainche (2012) ‘The eu Immigration and Asylum Policy in the Post-Lisbon Institutional Context’ in: L. Rubini and D. Robertson (eds) The Treaty of Lisbon and the Future of European Law London: Edward Elgar pp. 355–378.
Majcher‘The European Union Returns Directive: Does it Prevent Arbitrary Detention?’op. cit. 28: ‘The Return Directive arguably falls short of providing strong safeguards against arbitrary immigration detention’ as ‘it fails to definitely preclude lengthy unnecessary and disproportionate detention in the eu States’.
Ramboll and EurAsylum (2010) Study on the Situation of Third-Country Nationals Pending Postponed Return/Removal in the eu Member States and the Schengen Associated Countrieshome/2010/rfxx/pr/1001.
I. Majcher (2013) Crimmigration in the European Union through the Lens of Immigration Detention Global Detention Project Working Paper 6 Geneva: Global Detention Project; see also V. Mitsilegas The Criminalisation of Migration in Europe. Challenges for Human Rights and the Rule of Law London: Springer ( forthcoming).
A. Edwards (2011) Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees Asylum-Seekers Stateless Persons and Other Migrantsppla/2011/01.Rev.1 Geneva: unhcr 2011.